In my recent post on Sittampalam v IC and BBC (EA/2010/0141), I explained that the Tribunal took the view that the Commissioner does have a discretion to decline to order disclosure, even where information was incorrectly withheld at the time, due to subsequent developments such as legislative changes, inquiries or court proceedings and so on. In so doing, that Tribunal differed from the decision in Gaskell v IC (EA/2010/0090), where it was held that no such discretion existed.

The Upper Tribunal (UT Judge Wikeley) has this week allowed an appeal against the Gaskell decision, meaning that the Sittampalam position has now been confirmed as correct. The issue is put succinctly at paragraph 10 of UT decision GIA 3016 2010:

“The reasoning in the Commissioner’s Decision Notice can be summarized simply. Section 44(1)(a) of FOIA provides an absolute exemption where disclosure by the public authority holding it “is prohibited by or under any enactment”. Section 18(1) of CRCA [Commissioners for Revenue and Customs Act] 2005 provides that “Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.” Section 18(1) did not apply to the Rent Service at the time that Mrs Gaskell made her original request. However, by the time of his Decision Notice, Rent Service staff had become HMRC officials. If the Commissioner were to order disclosure, those staff would be contravening section 18 of CRCA 2005.”

The First-Tier Tribunal found that the Commissioner has no discretion to decline to order disclosure in such circumstances (and that if he did have such a discretion, he exercised it incorrectly in this instance). In contrast, however, the UT concluded as follows (paragraph 31; my emphases):

“In conclusion, I agree with both counsel [11KBW’s Karen Steyn and Ben Hooper] that the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken to comply with the requirements of sections 1(1), 11 or 17 in every case, although that consequence will usually follow, save for exceptional cases such as the present one. As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”

The UT went on to decide that the Commissioner had exercised his discretion correctly in this case.

UT Judge Wikeley’s judgment also includes both a Jane Austenism and the first citation of the Information Law Reports (or Info LRs), launched by Justis and 11KBW this month: Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin); [2010] QB 98; [2011] 1 Info LR 743.

Robin Hopkins